Employer Responsibility For Employee Actions Under Respondeat Superior Doctrine
WHEN WILL AN EMPLOYER BE RESPONSBILE FOR THE ACTIONS OF ITS EMPLOYEE PURSUANT TO THE DOCTRINE OF RESPONDEAT SUPERIOR?
Under the doctrine of Respondeat Superior, an employer may be found liable for the negligent actions of its employee if, at the time of the negligent action, the employee was acting within the course or scope of his or her employment. Carter v. Reynolds, 175 N.J. 802 (2003); Lehmann v. Toys ‘r Us, 132 N.J. 587 (1993). The theory behind this doctrine is based upon the fact that a person who derives a benefit or advantage from the acts performed by another must answer for injuries or damages caused in the performance of those acts to a third person. Carter, 175 N.J. at 409 citing Winkelstein v. Solitare, 129 N.J.L. 38, 40 (1942). In order to establish an employer’s liability for the actions of his employee in a tort action, plaintiff must prove: 1. that a master/servant relationship existed and 2. that the tortious conduct of the employee occurred within the “scope of his employment.” Id. at 409. With regard to the first prong of the two-prong analysis of the Respondeat Superior test, an employee will qualify as a servant if that person is “employed to employ services in the affairs of [the employer] and who with respect to the physical conduct in the performance of the services is subject to the other’s control or right to control.” Id. citing Restatement (Second) of Agency §220 (1958). Additionally, in the event that the master, or employer, is taking the position that the tort feasor is not a servant but, instead, is an independent contractor, the Restatement (Second) of Agency sets forth various factors to consider in making a determination concerning the independent contractor/servant dichotomy. Id. at 409-410. However, because it is undisputed that defendant Torchia was an “employee” of Acme Supermarkets on the date of the accident, such analysis is not required in the present litigation. Unfortunately, the determination of whether a tortfeasor was within the course or scope of his employment at the time the tortious act was committed, is significantly more complex. Because the legal term “scope of employment” in and of itself is rather vague and ambiguous, various courts have looked to various factors in determining whether a tortfeasor’s conduct falls within the “scope of employment.” Id. at 410-411. For instance, some of the factors include “the nature of the employment, the duties of the employee, whether the accident occurred in the course of fulfilling some job related function or whether it occurred during a trip personal to the employee.” Id. at 411. (citations omitted). New Jersey courts, for the most part, have turned to and relied upon the scope and analysis of Restatement (Second) of Agency at §228 and 229. Id. Section 228 states that an employee’s conduct falls within the scope of employment if: a. the conduct is of the kind he is employed to perform; b. it occurs substantially within the authorized time and space limits; c. it is actuated, at least in part, by a purpose to serve the master. Id. citing Restatement (Second) of Agency at §228. Additionally, Restatement §229 sets forth additional factors to be considered by the court in determining whether an employee is acting within the course of his employment. The general principle provided by §229 indicates that unauthorized conduct on behalf of an employee will be considered to be within the scope or course of employment if the unauthorized conduct is of the same general nature of that authorized or incidental to the conduct authorized. Id. The Restatement sets forth various factors to determine whether unauthorized conduct is “so similar to or incidental to the conduct authorized as to be within the scope of employment.” Id. citing Restatement (Second) of Agency §229. The factors of §229 relevant to the within litigation are as follows: “a. whether or not the act is one commonly done by servants; b. the time, place and purpose of the act; … f. whether or not the master has reason to expect that such an act will be done; g. the similarity in quality of the act done to the act authorized; …” Id. at 412 citing Restatement (Second) of Agency, §229. Against this backdrop, courts of this state have previously held that employees who are “going to” or “coming from” their place of employment are not considered to be acting within the course or scope of their employment. (The going and coming rule). Id. at 412; Mannes v. Healey, 306 N.J. Super. 351, 353-354 (App. Div. 1997). Importantly, the “going and coming rule” is based upon the fact that the employer loses the element of control over an employee when an employee leaves the work place until he or she returns to the work place, Mannes, supra, 306 N.J. Super. at 354, and that the employer derives absolutely no benefit from the employee’s commute. Id. “In essence, when employees travel to or from work they are deemed to be acting in their own interests without constraints by the employer regarding the method or means of the commute.” Carter, supra 175 N.J. at 413. Importantly, as is relevant to the within matter, there are at least three exceptions to the “going and coming rule”. They are: 1. when the employee is engaged in a special errand or mission on the employer’s behalf; 2. when the employer requires that the employee drive his or her personal vehicle to work; 3. when the employee is on call. Id. citing Mannes, supra, 306 N.J. Super. at 354-355. Clearly, the second exception is not applicable to the within litigation. However, the first and third exceptions must be further explored. The above referenced exceptions to the “going and coming rule” are deemed “dual purpose” exceptions on the basis that the employer derives some benefit out of the employee’s actions. Id. “Unlike ordinary commutation in which an employer really has no interest, each of the noted exceptions involves some control over the employee’s actions and a palpable benefit to be reaped by the employer, thus squarely placing such conduct back into the vicarious liability construct of the Restatement.” Id., 175 N.J. at 414. In Ricciardi v. Damar Products Co., 45 N.J. 54 (1965), the Supreme Court of this state held that an employee’s attendance at a company picnic qualified as a special errand or special mission has to fall within the scope of the employee’s employment. In Ricciardi, the plaintiff’s decedent was killed in a motor vehicle accident on July 2, 1960 while returning home from a picnic sponsored by her employer. Ricciardi, supra 45 N.J. at 59. Importantly, the plaintiff’s decedent was not required to attend the picnic and received no compensation in exchange for attending same. Id. Instead, the employer’s vice president encouraged employees’ attendance at the picnic indicating that the picnic was intended to improve employer/employee relations. Id. In determining whether plaintiff’s decedent’s death was covered under the worker’s compensation statutory scheme (i.e. whether the death occurred in the course of the employee’s employment), the court looked to the “special errand or mission” exception to the “going and coming rule”. Id. at 61. In determining that the accident was compensable, the Supreme Court focused on the benefit of the employee’s attendance at the picnic to the employer. Id. at 61. “Here the employer could not achieve the business aim of the outing unless the employees reached the picnic scene. Travel to and from it were of course essential.” Id. at 61 (emphasis added).